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CORPORATE MANSLAUGHTER AND HEALTH AND SAFETY DEVELOPMENTS THAT COULD AFFECT YOU
By Sean Elson, Senior Associate

THE current downturn presents a considerable challenge to all sectors of the economy, and will inevitably lead to the review of spending priorities and recruitment. It is somewhat ironic that this occurs at a time when the consequences for getting things wrong in the management of operational safety have never been more serious.

Businesses operating in the meetings and leisure and hospitality sectors face a myriad of risks as diverse as fire safety, Legionella and window restraint.  These issues have resulted in a number of high profile health and safety prosecutions of hotel operators over the past few years.  Recent changes to safety laws have emphasised one particular message that effective management of those risks to safety must remain an operational priority and cannot be compromised by the desire to cut costs or save money.

This year alone has seen a number of legal developments that could significantly increase the impact of a serious breach of health and safety and in the worst case scenario have the potential to close down a business.

There has been much publicity concerning the reform of the law of corporate manslaughter but less well known are (i) the proposals to issue guidance to courts which, if adopted, could lead to fines of up to 10% of the annual turnover or the business in question, (ii) recent legislation that raises the prospect of a prison sentence for individuals, if convicted.

It will now be significantly easier to successfully prosecute an organisation for manslaughter where serious management failure occurs that has been the cause of a person's death.
Corporate manslaughter investigations are intended to be reserved for the very worst cases of negligence and will focus on failings by "senior managers".  That does not just mean board directors but could also include health and safety managers, estate managers and others involved in the day to day management of a major part of an organisation or in the high level decision making process.

The legislators do not anticipate that the new law will lead to a large number of prosecutions, but the true impact of the legislation will not be clear for several years.  What is certain is that the prospect of facing a manslaughter investigation in the tragic circumstances of a fatality is more than just a theoretical risk.

The reform of corporate manslaughter is a clear indication of the increasing desire of society to hold organisations and individuals to account when something goes wrong.  Further evidence of this is the introduction in October 2008 of the Health and Safety Offences Act.

Until now, most health and safety offences could only be punished by a fine.  The level of fines imposed by the courts has been criticised as being too low by regulators, unions and other commentators.  This situation is now likely to change and must be seen as having a potentially significant impact should an organisation get things wrong and face the threat of prosecution.

From 2009 individuals convicted of a breach of health and safety duties now face a period of imprisonment of up to 2 years.  At the same time, financial penalties have been increased so that the maximum penalty in the magistrates' court for any health and safety offence will be £20,000.  This will affect a significant amount of health and safety prosecutions each year.

None of these developments require anything more to be done than was already expected under existing health and safety requirements.  There is no magic formula for complying with these safety obligations.  What is required is a clear assessment of the risks that an organisation faces and ensuring that there is a safety management system in place that effectively manages those risks.  Getting these basics of safety management right and applying sufficient resources is the key.

As the risks from getting safety wrong are about to increase, it would be sensible to undertake a "healthcheck" of the systems that an organisation has in place.  This should involve a review of corporate structures and safety policies and procedures, ensuring that risk assessments have been undertaken that are suitable and sufficient and providing adequate training where it is necessary.

Any such review should also consider the role of the board in providing effective leadership and ensuring the right message is delivered from the top down.  Increasing importance is placed on the safety culture within an organisation and a lack of senior management engagement could entail accusations that poor safety performance was tolerated as a result.

Sean Elson is a Senior Associate in the Dispute Resolution & Litigation Group at Pinsent Masons LLP

This article does not constitute legal advice and you should seek separate legal advice if you are affected by any of the topics discussed